9.  The first applicant, María Iglesias Gil, was born in 1961 and lives in Vigo. She is the mother of the second applicant, A.U.I., who was born in 1995.
10.  On 8 September 1989 the first applicant married A.U.A. On 3 June 1994 the couple divorced. Their son A.U.I. was born on 7 December 1995 and A.U.A. acknowledged paternity. In a decision of 20 December 1996, the Vigo Family Court awarded the first applicant custody of A.U.I., and the father access. On 1 February 1997 A.U.A. abducted his son during an access visit and left Spain with him. After passing through France and Belgium, he travelled with the child by air to the United States.
11.  The first applicant lodged a criminal complaint with Vigo investigating judge no. 5 alleging child abduction and applied to be joined to the proceedings as a civil party. On 4 February 1997 the investigating judge made orders for a nationwide search to be made for A.U.A. and for the child’s immediate return to its mother. Subsequently, the first applicant also made criminal complaints against various members of A.U.A.’s family who, she said, had assisted in her son’s abduction.
12.  During the investigation, the first applicant requested Vigo investigating judge no. 5 to monitor calls on A.U.A.’s mobile telephone and to interview members of A.U.A.’s family. In a decision of 19 February 1997, the investigating judge turned down both requests, the former on the ground that there was no evidence that the mobile telephone number that had been given was A.U.A.’s and the latter because the first applicant had not given precise details of the questions she wished to be put to her former husband’s relatives. The first applicant also asked the investigating judge for a search to be carried out at the registered office of a company belonging to A.U.A. that was responsible for administering his property in his absence, and for the examination of a vehicle he had used to leave Spain. The judge again refused.
13.  The first applicant asked the judge to issue an international search and arrest warrant against A.U.A., but in an order of 29 May 1997, he declined, stating:
“... 2.  As regards the international search and arrest warrant, the offences of coercion and extortion have not been made out. It is debatable whether there has been an offence of criminal contempt, since it has not been proved that the person concerned was ordered to comply with the judgment of the family court and warned that he was liable to commit this offence. In addition, since this offence (Article 556 of the Criminal Code) only carries a prison sentence of between six months and one year, an international search and arrest warrant is not justified, [especially] as the conduct complained of appears to come within Article 622 of the Criminal Code, which characterises it as a minor offence.
... 4.  Furthermore, it should be noted that the requested procedural steps are neither lawful, nor adapted to the aim pursued, and must therefore be refused pursuant to Article 311 of the Code of Criminal Procedure.”
14.  In a decision of 5 June 1997, investigating judge no. 5 turned down further requests by the first applicant for investigative steps to be taken as a result of her former husband’s contempt and failure to comply with the judgment of the family court on the following grounds:
“... 2.  Investigative steps are taken in order to establish whether an offence has been committed. The investigation is brought to an end by a judicial decision, not at the request of a party (Article 785 Code of Criminal Procedure). 3.  The inquiries made to date do not prove that A.U.A. failed to return his son to his mother at the end of the period for which he was entitled to have him to stay.
... 6.  A wanted notice has been issued for A.U.A. nationally. As soon as he has been traced, final provision 19 of Institutional Law no. 1/1996 of 15 January 1996 on the legal protection of minors can be applied.”
15.  In an order of 25 May 1998, the investigating judge also examined whether a person could be prosecuted for the abduction of a minor for whom he had joint parental responsibility. He found that this was not possible under the case-law, as the only offences that could be committed in such circumstances were criminal contempt and extortion. In a further order dated 1 July 1998 the investigating judge reiterated that no international search and arrest warrant could be issued for the suspected offence of criminal contempt, for the following reasons:
“... As regards an international search and arrest warrant against A.U.A., this issue was resolved by the Pontevedra Audiencia in its decision of 23 September 1997. No new facts have emerged since then that would justify reclassifying the offence. Under no circumstances can it amount to ‘false imprisonment’, as the judgment of 5 July 1993 on the abduction of minors makes clear. In that judgment, the court held: ‘The fact that a father has taken his minor child with him solely in order to enjoy its company cannot amount to the offence of child abduction’ ...
Lastly, as to the suspected offence of criminal contempt, no international search and arrest warrant can be issued as it is not an offence that comes within the extradition treaties. Consequently, Interpol would not act on such a warrant, as it would not be valid in law.”
16.  An appeal by the first applicant was dismissed by the Pontevedra Audiencia Provincial on 17 November 1998.
17.  The first applicant sought amparo relief under Articles 24 (right to a fair hearing), 15 (right to life and mental and physical integrity) and 17 (right to liberty and security) of the Constitution, and the United Nations Convention on the Rights of the Child of 1989. In a decision of 2 June 1999, the Constitutional Court dismissed her appeal as manifestly ill-founded, holding that she had not stated why she disagreed with the reasoned decisions of the lower courts.
18.  At the end of the investigation, on 3 July 1998, Vigo investigating judge no. 5 issued a provisional discharge order dismissing the charges against A.U.A. However, he renewed the orders for a nationwide search for A.U.A. and the order freezing his assets. He also made a final order dismissing the charges against the members of A.U.A.’s family who had been implicated by the first applicant. The reason given by the judge for making the provisional discharge order in respect of A.U.A. was that the latter’s absence from Spain had prevented his being questioned or formally charged in accordance with Article 791 § 4 of the Code of Criminal Procedure. An appeal by the first applicant was dismissed by the Pontevedra Audiencia Provincial on 9 November 1998.
19.  The first applicant lodged an amparo appeal against those decisions with the Constitutional Court, in which she alleged violations of Article 17 (right to liberty and security), taken together with Articles 18 (rights to private life and family privacy), 24 (right to a fair hearing) and 39 (social, economic and legal protection of the family and children) of the Constitution. She also relied on Articles 5 and 8 of the Convention. In her appeal, she complained in particular of the investigating judge’s systematic refusal to issue an international search warrant for her child, a refusal which, she said, was in breach of the positive duty to protect children and families. She also alleged a violation of Article 11 § 1 of the Convention on the Rights of the Child of 1989, which requires States to take measures to combat the illicit transfer and non-return of children abroad. In her submission, by refusing to take any investigative steps, the investigating judge had directly infringed both her and her son’s right to private and family life, and her right to judicial protection, as guaranteed by Article 24 the Constitution and Article 6 of the Convention.
20.  In a decision of 17 June 1999, the Constitutional Court dismissed the amparo appeal as unfounded, holding that the first applicant had confined herself to contesting the decisions of the criminal courts which, in reasoned and well-founded decisions, had decided to make a provisional discharge order in respect of her criminal complaint of child abduction, while renewing certain preventive measures.
21.  In connection with an appeal by the first applicant to the Pontevedra Audiencia Provincial against one of his decisions, investigating judge no. 5 said in a report to the Audiencia Provincial on 5 September 1997:
“... The purpose of criminal proceedings is to prosecute the offence and, if appropriate, to punish the perpetrators. However, an investigating judge cannot, under any circumstances, allow himself to be manipulated by a woman driven by jealousy or hatred against her former husband’s family and take a series of procedural measures that serve no purpose other than to inconvenience third parties uninvolved in the proceedings. In the present case, all that has been proved so far is that A.U.A. did not return his son A.U.I. to his mother at the end of the period he was allowed by the family court.”
22.  An application for an order requiring investigating judge no. 5 to stand down was dismissed in a decision of 20 November 1997. In a decision of 22 February 1999, an application for the proceedings to be declared null and void was likewise dismissed.
23.  In a judgment of 12 February 1999, the Vigo Family Court withdrew parental responsibility from A.U.A. and awarded the first applicant full parental responsibility. It gave the following reasons for its decision:
“... Having considered the evidence, the Court has decided to grant the applicant’s application. ... the case file shows that, after continually failing to comply with the access arrangements (see this Court’s decision of 20 December 1996), the respondent did not return the child to its mother at the end of the period stipulated in the decision of 20 December 1996. Furthermore, since 1 February 1997, the whereabouts of both father and child have been unknown, which means that the child has been removed from the applicant’s custody in breach of a court order. Such conduct can only be described as very serious, as it has entailed the cruel and abrupt removal of the child from the family background in which it was being happily brought up, thereby depriving it both now and then of its mother’s love and protection ... at the most tender of ages, with the serious harm which that entails ... Thus, by putting his own interests before those of his child, [A.U.A.] has acted in a manner that is seriously detrimental to the child’s welfare ...”
24.  According to a psychologist’s report produced by the first applicant in April 2000, A.U.A. first made contact with her through a telephone call in which he imposed various conditions for the child’s return, threatened her and used the prospect of her not seeing her son again as blackmail. On 12 June 2000 the first applicant lodged a criminal complaint against A.U.A. alleging threatening behaviour and coercion. On 30 September 2000 Vigo investigating judge no. 6 made a provisional discharge order. On an appeal by the first applicant, that order was quashed by the Pontevedra Audiencia Provincial in a decision of 15 May 2001.
25.  On 18 April 2000 the first applicant saw her son for the first time since his abduction in February 1997. On 12 May 2000 A.U.A. voluntarily appeared before the investigating judge, who, after hearing his representations, decided not to order his detention pending trial. Finally, on 18 June 2000 the first applicant was able to recover her child with police assistance on A.U.A.’s return to Vigo with the child. She said that for a time she was forced to go into hiding with her son in a shelter for women.
26.  On 14 July 2000 the Family Court granted A.U.A. access. As he was prevented from exercising that right, A.U.A. lodged a criminal complaint with the Vigo investigating judge against the first applicant and her parents alleging aggravated contempt.